Lieutenant Colonel Gordon . Sir W. Follet - Shaw v. John Anderson and Others . Dr. Lushingto - Spalding [1834] UKHL 7_WS_545

UKHL
Lieutenant Colonel Gordon . Sir W. Follet - Shaw v. John Anderson and Others . Dr. Lushingto - Spalding
[1834] UKHL 7_WS_545 · 1834-08-15
Circumstances under which it was found (affirming the judgment of the Court of Session) that tenants were not liable in damages to their landlord for a failure to use the fodder of the crop of the last year of their lease on the farm.In the month of May 1801 the respondent, John Anderson, who was then in possession, as tenant, of the farm of Kirktown of Slaines, addressed to the appellant, the proprietor, an offer for a lease for twenty-one years from Martinmas then next, which was made and accepted on the footing that he was to be bound by certain general regulations applicable to the whole estate. One of these regulations (the 16th) was thus expressed:—
“The whole fodder to be used upon the ground, and none sold or carried away at any time, hay only excepted, and all the dung to be laid upon the farm the last year of the lease.”
Anderson continued in possession, in virtue of this lease, and sub-let part of the farm to other parties. Crop 1822 was his last crop; and Anderson having intimated his intention to carry it away, and to dispose of it for his own benefit, the appellant, on the

Footnote

* The true date is 31st August 1835, the case having been omitted to be reported along with those of 1835.

Page: 546 ↓

In the meantime, viz. in March 1823, the respondents, Anderson and his sub-tenants, made the following offer to the appellant, under form of a notarial instrument of protest:— 1. “To give over to the said John Gordon, Esq., or, with his consent, to the present tenant of the said farms, the whole of the fodder or straw stacked upon the said farms at a fair valuation, to be put thereon by any two respectable farmers in the neighbourhood—one to be chosen

Footnote

* See ante, vol. iii. p. 1.

Page: 547 ↓

In answer to this protest Colonel Gordon stated that he had long previously “offered to give them accommodation of houses at Kirktown of Slaines for the consumption of the fodder of the last crop of that farm, which offer they did not accept, although, if they had done so, the whole of the said fodder might have been long ago consumed on the farm; that he is still willing to give them that accommodation; that his chief object in view always was to have the fodder

Page: 548 ↓

Thereafter, in the month of June, the straw was valued by judicial inspectors at 118 l . 2 s . 6 d ., who reported that it “would have been worth one third more value, provided it had been properly cured, which it has not been, as it has never been thatched, which it ought to have been at the time it was put up, or when it was thrashed out.”In October of the same year Colonel Gordon raised an action of damages before the Court of Session against the respondents, setting forth that they “have failed to use the fodder of said way-going crop 1822 upon the ground of the said lands, in terms of the foresaid articles and regulations, and have prevented the pursuer from using it, or converting it into dung, whereby it is now greatly lessened in value; and the defenders have thus subjected themselves in damages to the pursuer.” The proceedings in this process were delayed till the issue of the principal cause, and were resumed on the judgment of reversal being pronounced.In defence the respondents pleaded, that although it had been finally settled that they were not entitled to carry away or dispose of the fodder, yet it had not been decided whether, under the article of the regulations founded on, they were bound to use the fodder upon the ground; and they maintained that, in fair construction, all that

Page: 549 ↓

The Lord Ordinary, “in respect there are raised in the record questions of law, and in particular as to the construction of a judgment of the House of Lords,” reported the cause to the Court on Cases; and on advising them, their Lordships, on the 24th of May 1833, pronounced this interlocutor:—
“In the whole circumstances of the case, find no damages due; sustain the defences, and assoilzie the defenders from the conclusions of the libel, and decern;”

and found expenses due. *

Colonel Gordon appealed.Appellant .—It is now a fixed point that the respondents are bound by the articles and conditions, and particularly by the 16th, by which it was stipulated that the whole fodder was to be used upon the ground, and none sold or carried away at any time. It is admitted that during the currency of the lease the fodder was to be used and converted into dung by the respondents, for the benefit of the land; and there is no distinction

Footnote

* 11 S. & D. 647.

Page: 550 ↓

Respondents .—The judgment of this House was not intended to affect, and does not affect, the question as to the construction of the stipulation founded on by the

Page: 551 ↓

But even if it were to be held that it was incumbent on them to do so, still, under the peculiar circumstances of this case, there are no just grounds for finding them liable in expenses. Both the Sheriff, and all the Judges of the Court of Session, were of opinion, not only that the respondents were not bound to consume the fodder on the ground, but that it belonged to them in property, and that they were entitled to dispose of it for their own benefit. It is true that this House arrived at an opposite conclusion; but in the meanwhile the respondents had done every thing in their power to provide against the possibility of loss, and the appellant had rejected all their propositions. He has himself, therefore, to blame, if the fodder, which was of a perishable

Page: 552 ↓

Lord Brougham .—My Lords, there are one or two circumstances in this case upon which I should take time for consideration, not only as to the arguments urged to-day, but how far the Court below was right in the construction which it put on the order of your Lordships; and indeed what construction their Lordships in the Court below did put on that, for I think that remains in a state of considerable doubt, after all that I have heard on either side of the bar. It has been ably argued on both sides; and as far as we have any lights upon it from the documents in the cause, those lights have been taken advantage of by the learned counsel; still I should wish to have further information; and if I continue to have any doubt (it is important the thing should be distinctly understood) I shall be obliged, as I frequently have been before, to have communication with the Learned Judges in the Court below. That is always however to be avoided if it can be; I always wish to be able to decide a case, or rather to advise your Lordships to decide a case, here without the necessity of that course; because, though I endeavour to give my view of the case, and to give the arguments used on both sides as distinctly and fairly as I can in my correspondence with the Learned Judges, it is quite clear I do not give them exactly in the way in which either of the counsel, if they were heard before those Learned Judges, would be inclined to give them. I give them according to my sense of them, perhaps differing from the learned counsel in their view of their own arguments;

Page: 553 ↓

My Lords,there is another reason why I wish to have this well considered, and to have that communication, if consideration should render it necessary or advisable;— and that is, that I do not quite understand the sort of language used by some of the Learned Judges respecting the decisions of this House. It is quite clear that they are bound to submit to the decisions of this House, and they ought to submit in silence. It is not sufficient for a judge in the Court below to say, I submit by force, but I tell all the liege subjects of the kingdom that the House of Lords have decided wrong, that they are perfectly ignorant of Scotch law,—which they are not, for they keep the Scotch judges right. We have reversed three or four important Scotch cases, and the Learned Judges were unanimous in their decisions which we altered, and the Learned Judges themselves admitted that the House of Lords were right. In the Duntreath case Lord Mansfield reversed a decision on the law of real property in Scotland which the courts had come to; they thought it wrong, and struggled a little against the judgment here; but every Scotch lawyer, within five years after that judgment was pronounced, admitted that it restored the Scotch law. Many believed the Herbertshire case, which I decided, restored the Scotch law. My opinion is, that the Herbertshire case was completely

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I am bound to make these observations, which I shall repeat as often as I ever hear it represented at that bar that such things have been said in the Court below. This House is the court of appeal; by the law of the land it has the appellate jurisdiction; it never was better advised,—it never was more diligently attended to,—the appeal business was never more learnedly or ably conducted,—than it was during the twenty-five years my venerable, noble, and most learned friend, Lord Eldon, occupied the woolsack; and whenever I hear it said, by any Judge whatever, that he will not regard that most Learned Judge's decisions, even upon questions of Scotch law, I shall remind that Learned Judge that the law of the land is against it, that his oath of office is against it, that he does not do his duty if he does not yield a respectful obedience to the decisions of this high Court.My Lords,I will add, that Lord Eldon's decisions

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Now, justice to Lord Eldon and Lord Gifford required me to say thus much; and I do hope I never shall again have occasion, as long as I sit here, to make any such observations, for it is painful to me. My Lords, it is only bare justice to one judge, so impeached, that makes it necessary to offer an observation against any other judge. Where one is in such a situation as to appear to acquiesce on the one side, I must say, I feel the lesser of the two evils to be stating this, and protesting against it, than keeping silence. I believe, as I said before, it is more the report of the learned judge than that he really did use such expressions. I believe it is something like the report we had of another learned judge, who was reported to have said, if it

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed.Solicitors: G. W. Poole— Deans and Dunlop, Solicitors.